“Did the case of Horsham kill the case of Boland?”

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The essay “Did the case of Horsham kill the case of Boland?” analyzes two cases about proprietary deviation and the connection between them.

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The case of Boland is concerned with the violation of wife’s unregistered right of possession of her matrimonial home in which her spouse had an equal share but had his name alone shown as the registered proprietor of the property in the land register. The husband had mortgaged the property to Williams & Glyns’s Bank without his wife’s knowledge even though they were living together in the same house. The mortgagee bank also did not care to verify with his wife if she had any interest before lending her husband against the mortgage of the said property.

The question was whether the wife had an overriding interest by virtue of section 70 (1) (g) Registration Act 1925.since the appellant had sought to distinguish the “word actual occupation” as mentioned in the said section from her real status. The House of Lords ruled that actual occupation had only its literal meaning of physical presence and as long as she was physically present in the matrimonial home with all the rights of an occupied. Hence the wife had an overriding interest even though it could be argued that hers was the equitable interest as a minor interest entitled her interest only in the proceeds of a sale. The mortgagee bank failed to verify the factual position at their peril. Thus an equitable mortgagee does not get priority over an equitable interest of which he is deemed to have constructive notice.

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